Macris & Galanis: Father’s appeal of parenting and property orders

In the case of Marcis & Galanis [2015] FamCAFC 234 the father appealed parenting orders that reduced the amount of time he would spend with his children and property orders that he said did not sufficiently recognise his contributions and unlawfully favoured the mother.

The father challenged the judge’s approach taken in the reopening of the parenting matter, argued that there was a failure to provide adequate reasons for limiting the children’s time with him and disputed that the time he had been granted under the orders amounted to substantial and significant time as defined in ss 65DAA(3) and (4) Family Law Act 1975 (Cth).

The father challenged the judge’s decision not to adduce further expert evidence before delivering a final judgment in the reopening of the parenting matter. The Court considered his Honour’s finding that the expert evidence available to him at the time was sufficient to be open to him. Taking into account the undue delays the parties had already experienced, his decision to adjudicate on the current evidence at hand was found to be reasonable and thus this ground of appeal was dismissed.

The Court rejected the father’s claim that the trial judge had inadequate reasons for ordering that the children live with the mother and spend time with him. Expert evidence provided by Dr [H] stated that child [X] wished to spend more time with the mother and that the current equal time arrangements were not working. Dr [H] submitted to the Court that the “events since 2011 have shown that these parents lack the benchmark qualities which are required for 50:50 shared residential care to work well.” The Court found that the ground was not made out as “his Honour carefully considered the proposals of the parties, their evidence and the expert evidence”.

The father’s ground of appeal that the orders did not provide him substantial and significant time with the children was found to have no substance. It was open to the trial judge to give orders providing more substantial and significant time than what was granted to the father. However, the conditions provided by s 65DAA(3) of the Act for time to be substantial and significant were all met by the orders of the trial judge.

The father was found to have several valid grounds of appeal of the property orders. His submission that the trial judge failed to take into account several facets of his contributions was substantiated. These included the use of a $60,000 redundancy to discharge the mortgage on the wife’s property, his decision to work full-time throughout the marriage, his significant contributions to the care of the children and his undertaking of renovations of the wife’s property. The extent to which his contributions were overlooked was found to be an error requiring appellate intervention.

Furthermore, there were several other errors found in the trial judge’s consideration of the property matter. It was found that the trial judge overlooked the father’s submissions regarding the value of his superannuation, motor vehicle and personalty. Taking all these factors into account, the Court came to the conclusion that “his Honour’s ultimate conclusion concerning the comparative value of the parties’ contributions is fatally flawed”.

The Court found that the father had failed to establish error in relation to the parenting orders and so the parenting appeal was dismissed. His appeal of the property orders was allowed and the previous orders were set aside, with the property proceedings being set for a rehearing in the Federal Circuit Court.

Boyce Family Law
Family Lawyers Sydney

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Stacey & Woden: When the risk of child abuse necessitates the Court’s intervention

The case of Stacey & Woden [2015] FamCA 1107 concerns the parenting arrangements for nine-year-old G and his seven-year-old sister, D. The child G lives with his father and spends time with his mother occasionally. The child D spends equal time with each of her parents.

The mother ceased to participate in the proceedings and instructed her lawyers to seek leave to withdraw. The father asked the Court to dismiss all applications and bring the proceedings to a close.

However, the Independent Children’s Lawyer submitted that it was open to the Court to make a finding that one or both of the children are at risk of sexual abuse in the unsupervised care of the father. To bring the proceedings to a close would continue the existing arrangements that involve both children spending extensive unsupervised time with the father.

The Child Protection Services had completed their enquiries and reported to the mother that “Based on the information provided to Child Protection Service during our investigation and information from police investigation, [we have] substantiated that the children are at risk in their father’s care”.

This was contradicted by the mother’s submissions to the Court, who expressed that “the arrangements worked well and I have no concerns for the welfare of the children whilst in his [the father’s care]”. Further that “I believe the children are safe in [the father’s] care”. Despite both parties consenting to the current parenting arrangements continuing, the Court considered the concerns regarding the father to be a justiciable controversy requiring the Court’s intervention.

Given the evidence regarding the risk of sexual abuse of the children, the Court was satisfied that unsupervised time with the father presented an unacceptable risk of abuse of the children. The Court also noted that the evidence is untested, and that they were not satisfied that that the children are necessarily at risk of sexual abuse by the father. However, they noted their obligation to protect the children from potential harm.

In order to fulfil this obligation the Court made a series of protective orders. Restraining orders were implemented forbidding the parties from abusing the children or exposing them to pornography. An injunction was made precluding the exercise of parental responsibility by the father. The Independent Children’s Lawyer was permitted to continue to carry out his obligations to ensure the children’s continued protection from harm. The Court discharged the previous interim orders as they were ignored by the parties.

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Family Lawyers Sydney

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Determining the parents of surrogate children

In Australia, each State and Territory (except the Northern Territory which has no law on the topic) has different laws governing surrogacy. Common to all is that they permit ‘altruistic’ arrangements but not commercial arrangements in Australia. New South Wales, the ACT and Queensland have made it an offence for those in their jurisdiction to enter into international commercial surrogacy arrangements. This means it is not a crime for those from other jurisdictions to enter international commercial surrogacy arrangements, but it can be difficult to obtain the sought after ‘parenting orders’ available in some jurisdictions to transfer the parentage from the surrogate to the parties who commission the surrogacy. But the Family Court of Western Australia has reiterated that the persons who commission a child born as a result of artificial conception procedures where the birth is the result of surrogate arrangements are not deemed the children of the persons who commissioned the surrogacy.

The primary issue for consideration in Farnell & Anor and Chanbua (2016) FLC 93-700; [2016] FWCA 17 was whether ‘Pipha’, who was born to a surrogate mother in Thailand in 2012 having been commissioned by Mr and Mrs Farnell and who has lived with the Farnell’s in Western Australia since months after her birth, could be ordered to live with her surrogate mother Mrs Chanbua and her husband. The court held that whilst Pipha could not be considered the Farnell’s child under federal law because she was a surrogate child and that Mr and Mrs Chanbua were under state law the parents of Pipha, that she should not be removed from the Farnell’s since they are the only family she has even known. In coming to this conclusion, the judge gave consideration to the fact that Pipha has strong attachments to the Farnell’s and has received quality care from them.

In judgment that tackles a myriad of issues from the jurisdiction of the court, law reform, complex statutory schemes relating to adoption, naming of children, surrogacy, marriage and family, the Family Court of Western Australia gave consideration to the submissions of Mrs Chanbua as well as the DPP, Human Rights Commission, and the Independent Children’s Lawyer. Despite the fact that some of these submissions highlighted that Mr Farnell was a convicted sex offender, and that the Farnell’s may be prosecuted for perjury (for statements made un-related to what was being determined in this case), the court ultimately held that evidence suggested that Mr Farnell had led an exemplary life since leaving prison some 17 years ago, and that Pipha was happy, had grown to love the Farnell’s and regarded them as her parents (at 377).

In commenting on commercial surrogacy, the court noted that they had approached this dispute from the perspective of what would be best for Pipha and that it doesn’t indicate its approval of commercial surrogacy, but that it is for others to decide whether the ‘manifest evils associated with overseas commercial surrogacy can be overcome by importing the problem into Australia’.

Boyce Family Law

Divorce Lawyers Sydney

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